Citation Nr: 9824627
Decision Date: 08/14/98 Archive Date: 07/27/01
DOCKET NO. 97-32 185 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to special monthly pension by reason of being in
need of regular aid and attendance of another person.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Mainelli, Associate Counsel
INTRODUCTION
The veteran, who died in January 1995, served on active duty
from November 1943 to February 1948. The appellant is the
veteran's widow.
In a decision dated March 1995, the St. Petersburg, Florida,
Regional Office (RO) of the Department of Veterans Affairs
(VA) granted the appellant's claim for entitlement to
Dependency and Indemnity Compensation (DIC) pursuant to
38 U.S.C.A. § 1318. By decision dated June 1997, the RO
granted her claim for entitlement to housebound allowance,
but denied her claim for special monthly pension based upon
the need for aid and attendance of another person. The
appellant has appealed the unfavorable outcome in the June
1997 decision.
REMAND
The appellant contends that her current disabilities, which
include rheumatoid arthritis, osteoporosis, degenerative
disease of the hips and advanced lung disease with very
limited respiratory reserve, are so disabling as to require
the regular aid and attendance of another person. In support
of her claim, she has submitted private medical opinion which
indicates that she is confined to a wheelchair and requires
assistance with household chores, cooking, and home
maintenance.
The RO granted the appellant's claim for a housebound
allowance, in part, upon the private medical opinion which
indicated that she was confined to a wheelchair. However,
the Board is of the opinion that additional medical evidence,
in the form of a VA aid and attendance examination, should be
obtained before the issue of entitlement to special monthly
pension for aid and attendance is decided.
In view of the foregoing, this case is REMANDED for the
following actions:
1. The RO should contact the appellant
and request the names, addresses and
approximate treatment dates of all
providers of medical treatment for her
current disabilities. The RO should
thereafter request copies of all records
compiled pursuant to that treatment,
including complete copies of medical
records which correspond to treatment
provided by: (1) Douglas Tappan, M.D.;
(2) Dr. Victor V. de Luna Villarreal; and
(3) Thomas L. Hoyt, M.D. All records
received in response to the request
should be associated with the claims
folder, and all attempts to obtain
records, which are ultimately not
obtained, should be documented.
2. Following the receipt of any
additional records, the appellant should
be afforded a VA examination for need of
aid and attendance. The claims file must
be made available to the examiner. The
examination should clearly indicate the
nature of the appellant's disabilities
and the impact of these disabilities on
her ability to perform daily functions.
3. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
4. If the appellant fails to report for
VA examination, the RO should notify her
of the requirements of 38 C.F.R. § 3.655
and give her the opportunity to explain
any good cause for missing the
examination.
5. After completion of the above-
referenced development, the RO should
readjudicate the issue of whether
entitlement to a special monthly pension
based on the need for aid and attendance
can be granted with consideration given
to all of the evidence of record,
including any additional medical evidence
obtained by the RO pursuant to this
remand. If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the appellant
and her accredited representative should
be furnished a Supplemental Statement of
the Case and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Veterans Appeals for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans' Benefits
Improvements Act of 1994,
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Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE
MANUAL, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
M. S. SIEGEL
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).